United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's motion to
extend the discovery deadline (Dkt. No. 26) and
Plaintiffs' motion to modify the case scheduling order
(Dkt. No. 28). Having thoroughly considered the parties'
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS Plaintiffs' motion
and DENIES Defendant's motion for the reasons explained
own land (the “lots”) that is intersected by
drains, pipes, and easements owned by Defendant. (Dkt. No.
1-3 at 2-3.) Plaintiffs allege that Defendant has negligently
and/or deliberately failed to properly maintain the drains
and pipes, causing excess water to collect on the lots.
(Id. at 3.) Plaintiffs allege that the excess water
has damaged the lots, in part due to contaminants and
sediments in the water, and has hindered “reasonable
development” of the lots. (Id.) Plaintiffs
claim that Defendant has “effectively appropriated the
lots or a portion of the lots for public purposes.”
(Id.) Plaintiffs further allege that Defendant
negligently or wrongfully indicated that an adjacent lot is a
protected wetland. (Id. at 4.) Plaintiffs brought
various state and federal claims against Defendant. (See
Id. at 5-10.)
December 4, 2018, Defendant inspected the site, accompanied
by Steven Neugebauer, who had been retained as an expert by
Plaintiffs. (Dkt. Nos. 10 at 2, 30 at 3.) In his first
declaration, Mr. Neugebauer described a pipe found during the
inspection that was unknown to him and possibly unknown to
Defendant. (Dkt. No. 10.) After allegedly finding damage to
the main line pipe during the inspection, Defendant amended
its original answer to include counterclaims against
Plaintiffs for negligence and violation of easement. (Dkt.
Nos. 23, 30 at 3.)
6, 2019, Defendant deposed Mr. Neugebauer, but stopped the
deposition after 15 minutes because Mr. Neugebauer appeared
impaired. (Dkt. Nos. 26 at 1, 3; 31 at 9-25.) The parties
made several attempts to reschedule the deposition, but could
not do so because, according to Plaintiffs' counsel,
“Mr. Neugebauer was very sick and could not be deposed
until after he saw a doctor and after the discovery
deadline.” (Dkt. No. 26 at 3.) On June 24, 2019,
Plaintiffs' counsel informed Defendant's counsel that
Mr. Neugebauer was “medically unable to continue in the
case and could not be deposed.” (Id.)
requests an extension of the discovery deadline for the
limited purpose of allowing it to finish deposing Mr.
Neugebauer. (Dkt. No. 26.) Plaintiffs request that the Court
modify the case schedule and extend all deadlines to permit
Plaintiffs to locate a new expert witness to replace Mr.
Neugebauer. (Dkt. No. 28 at 2.)
Modification of the Case Schedule
of the case schedule requires good cause and the judge's
consent. Fed.R.Civ.P. 16(b)(4); W.D. Wash. Local Civ. R.
16(b)(5). Good cause is determined at the Court's
discretion. Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607 (9th Cir. 1992). The Court “primarily
considers the diligence of the party seeking amendment,
” but as a secondary matter, the “existence or
degree of prejudice” to the opposing party may provide
additional reasons to deny modification. Id. at 609.
“Carelessness is not compatible with a finding of
diligence.” Id. If a deadline “cannot
reasonably be met despite the diligence of the party seeking
the extension, ” there is good cause. Id.;
see Noyes v. Kelly Servs., 488 F.3d 1163, 1174 (9th
if a party's motion to modify a case schedule is
untimely, the Court applies a standard that is narrower than
the good cause standard to determine whether it will consider
the motion. See Pincay v. Andrews, 389 F.3d 853, 855
(9th Cir. 2004). The Court determines whether the delay in
filing the motion was due to “excusable neglect”
by weighing: “(1) the danger of prejudice to the
non-moving party; (2) the length of the delay and its
potential impact on judicial proceedings; (3) the reason for
the delay . . .; and (4) whether the moving party's
conduct was in good faith.” Id.; see also
Amarel v. Connell, 102 F.3d 1494, 1515-16 (9th Cir.
1996) (applying similar analysis when deciding whether to
amend a pretrial order to allow parties to add witnesses);
Hoffman v. Tonnemacher, 362 Fed.Appx. 839, 840-41
(9th Cir. 2010) (applying Amarel analysis to a
party's request for modification to substitute a
counsel informed Defendant's counsel of Mr.
Neugebauer's withdrawal on June 24, 2019, the same day
that Mr. Neugebauer informed Plaintiffs' counsel of his
withdrawal. (Dkt. No. 28 at 2-3.) On the morning of June 25,
2019, Plaintiffs' counsel contacted potential expert Ed
Kilduff, who confirmed on June 26, 2019 that he could provide
his expert opinions if given 60 to 90 days to investigate,
complete a field study and report, and prepare for a
deposition. (Id. at 3.) That same day, Plaintiffs
filed their motion to modify the case schedule, which
includes a proposed modified case schedule. (See
id.) Since the discovery cutoff was also June 26, 2019,
the Court will evaluate whether Plaintiffs' motion was
based on excusable neglect. (Id. at 1); see
Pincay, 389 F.3d at 855.
reason for Plaintiffs' delayed modification request-Mr.
Neugebauer's illness and his withdrawal as a witness-is a
sufficient reason for amending the case schedule. See
Pincay, 389 F.3d at 855; Amarel, 102 F.3d at
1515-16. Given Plaintiffs' own surprise and quick
response to the news of Mr. Neugebauer's withdrawal, the
Court finds that Plaintiffs' modification request was
made with diligence and in good faith. See Pincay,
389 F.3d at 855; Amarel, 102 F.3d at 1515-16. The
requested modification, although substantial, does not impact
these proceedings to a degree that counters Plaintiffs'
good cause shown. See Amarel, 102 F.3d at 1515-16;
Johnson, 975 F.2d at 607; Noyes, 488 F.3d
at 1174. Plaintiffs cannot reasonably meet the current case
deadlines without an expert witness. See Johnson,
975 F.2d at 607; Noyes, 488 F.3d at 1174. Thus,
Plaintiffs have shown good cause and their motion meets the
requirements of the excusable neglect standard. See
Johnson, 975 F.2d at 607; see Pincay, 389 F.3d
moved to extend the discovery deadline because it was
concerned that Mr. Neugebauer would file a declaration in
opposition to Defendant's dispositive motion before
Defendant could depose him. (See Dkt. No. 26 at
4-5.) Defendant's concern is now moot, given that Mr.
Neugebauer has withdrawn as a witness from the case.
Defendant also claims that Plaintiffs' requested schedule
modification is prejudicial because of the time and expense
required for discovery, depositions, and ...